Could Trump replace Jeff Sessions in a recess appointment?

President Donald Trump sounds like he’s intent on forcing out his “beleaguered” attorney general, Jeff Sessions, either by firing him or demeaning him until he quits. Firing Sessions might get rid of one of the president’s problems, but it could create a whole host of others.

Most urgently, firing Sessions could sever Trump’s relationship with Republicans in Congress – you know, the same Republicans he needs to approve his nominees (in the Senate) or pass bills he can sign into law (both the Senate and House).

The Washington Post’s White House team reports that if Sessions is out soon, Trump is discussing going over indignant Republicans in the Senate and bringing on a new attorney general while the Senate is on break this August.

It could happen. But it could also backfire bigly. And since Republicans control a majority of Congress, when they’re upset at the president, there’s a lot they can do to stop him – including preventing a new attorney general from taking office.

Let me explain.

Yes, Trump has the authority for a recess appointment

There’s actually a “Recess Clause” in the Constitution (Article II Sec. 2) that reads: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Presidents have used it for everything from relatively obscure labor boards to filling seats on the Supreme Court. In 1956, President Dwight D. Eisenhower used that authority to appoint William Brennan to the Supreme Court less than a month before the presidential election. A few years before that, he had appointed Chief Justice Earl Warren to the court when the Senate was in recess. In both cases, the Senate later confirmed those justices.

But the courts have made it more difficult

Recess appointments can backfire, legally. In 2014, the Supreme Court overturned President Barack Obama’s three recess appointments to the National Labor Relations Board, arguing that the president overstepped his constitutional authority.

The Senate can make recess appointments nearly impossible.

When it overruled Obama, the Supreme Court also gave the Senate a wide latitude to decide when it considers itself to be in recess and when it’s out. Today, a recess has to last at least 10 days before the president can legally make an appointment.

The court also okayed a loophole the Senate can use to leave town but still block a president from having free rein.

The Senate can go into “pro forma” sessions, which exist almost entirely to prevent a president from making recess appointments. In a pro forma session, the Senate can gavel into Congress – with no legislative business being conducted – and claim it has been in session. “The whole thing takes 20 seconds,” said Cornell Law professor Josh Chafetz. The Senate could theoretically gavel in/gavel out the whole time it’s gone in August.

It’s up to Republicans to decide if they want to hold the line against Trump.

If our hypothetical scenario becomes reality, this is where things get really interesting. You need a majority of the Senate to decide to go into a pro forma session. Republicans have the majority. So if Republicans decide to set up pro forma session when they go out of town in August, they’d basically be sticking it to Trump, saying they don’t trust the president not to do something ill-advised like fire his attorney general after complaining about said attorney general’s recusal from an investigation into Trump’s campaign.

Trump has one other legal avenue.

If Trump is itching to fire Sessions, Congress be damned, he could simply skip an appointment for good and just name an acting attorney general under the 1998 Federal Vacancies Reform Act. The end result is the same: One official out, another one in.

But, Chafetz notes, the president could only appoint people who have already been confirmed by the Senate for another job, and that’s a historically thin list. Plus, there’s legal uncertainty on whether the president can use this tool if he fires someone.

“It says death, resignation or unable to perform the duties of the office,” Chafetz said. “And there’s an argument that ‘firing’ is left out of that deliberately….”

Checks and balances can be a bother.

AG Jeff Sessions to @TuckerCarlson on President Trump’s criticism of him: “it’s kind of hurtful”. Full intv 8pm @FoxNews pic.twitter.com/NG3VQnkwwc